Pace University DigitalCommons@Pace Pace Law Faculty Publications School of Law 1-1-2006 "Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence Donald L. Doernberg Elisabeth Haub School of Law at Pace University Follow this and additional works at: https://digitalcommons.pace.edu/lawfaculty Part of the Constitutional Law Commons Recommended Citation Donald L. Doernberg, "Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court's Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253 (2006), http://digitalcommons.pace.edu/lawfaculty/264/. This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Faculty Publications by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. "CANYOU HEAR ME NOW?": EXPECTATIONSOF PRIVACY,FALSE FRIENDS, AND THE PERILS OF SPEAKINGUNDER THE SUPREMECOURT'S FOURTHAMENDMENT JURISPRUDENCE The Fourth Amendment' has given the Supreme Court and scholars trouble since the Court began paying serious attention to it in 1886.' The problems begin with its wording: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be ~eized.~ For adherents of black-letter law and bright-line tests, the Fourth Amendment presents a disconcerting challenge. After all, how much certainty and clarity can one expect from an amendment that speaks in terms of reasonableness and probability? Oddly, the Court's early approaches to the Amendment were a blend of sweeping vision and mechanical application. One would search in vain for more lofty statements about privacy interests and suspicion of government power than those in Boyd v. United state^.^ Justice Bradley, writing for the Court, quoted extensively from Lord Camden's famous opinion in Entick v. Carringtons * Professor of Law, Pace University. B.A. 1966, Yale University; J.D. 1969, Columbia University. Special thanks go to my colleague, Professor Barbara Black, a specialist in corporations and securities regulation law (of all things), whose thoughtful questions and observations in casual conversation one day provoked me to better understand what is really going on beneath the surface of the Supreme Court's jurisprudence in this area. I also appreciate Professor Bennett Gershman's willingness to read a draft and his helpful comments and suggestions. I also am delighted to acknowledge my gratitude to and respect for Elizabeth Wheeler, Pace University School of Law Class of 2006, and Sara Miro and Saad Siddiqui, Pace University School of Law Class of 2007, for their dedicated research and editing assistance. My thanks also to Jennifer Odrobina, Pace University School of Law Class of 2005, for her thoughtful comments on the manuscript. Finally, I would like to thank the editors and staff of the Indiana Law Review for their hard work and help. The Article is better for their efforts. The errors that remain reflect my ability to overcome their good counsel. 1. U.S. CONST.amend. IV. 2. See Boyd v. United States, 116 U.S. 616 (1886). Only three Supreme Court cases before Boyd even mention the Fourth Amendment specifically; none discusses it at any length. See generally WAYNER. LAFAVEETAL., CRIMINALPROCEDURE5 3.1, at 106 (4th ed. 2004) (noting that "[tlhe Fourth Amendment remained largely unexplored until 1886"). 3. U.S. CONST.amend. IV. 4. 116 U.S. 616 (1886). 5. (1765) 95 Eng. Rep. 807 (K.B.), quoted in Boyd, 116 U.S. at 627-28: Heinonline -- 39 Ind. L. Rev. 253 2005-2006 INDIANA LAW REVIEW about the inviolability of individuals7houses and personal papers. The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government, and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense,-it is the invasion of this sacred right which underlies and constitutes the essence of Lord CAMDEN7sjudgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony, or of his private papers to be used as evidence to convict him of crime, or to forfeit his goods, is within the condemnation of that j~dgment.~ One should note, however, that Boyd and its soaring statements of "sacred right" have fallen upon hard times. For example, the Court has permitted the state to compel defendants to give voice7 or handwriting exemplars,' to have their blood tested for alcohol content: or to turn over private papers." All of these aid in the process of securing convictions. The Court has explained, however, that the Fourth Amendment does not protect things (such as one's voice or handwriting) that are constantly exposed to the public, and the Fifth Amendment protects only against evidence that is both compelled and testimonial. Papers are the owner's goods and chattels; they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection; and though the eye cannot by the laws of England be guilty of a trespass, yet where private papers are removed and carried away the secret nature of those goods will be an aggravation of the trespass, and demand more considerable damages in that respect. Where is the written law that gives any magistrate such a power? I can safely answer, there is none; and therefore it is too much for us, without such authority, to pronounce a practice legal which would be subversive of all the comforts of society. 6. Boyd. 116 U.S. at 630. 7. See United States v. Dionisio, 410 U.S. 1, 13-14 (1973) (finding that a grand jury subpoena requiring voice exemplar does not violate either the Fourth or Fifth Amendment). 8. See United States v. Mara, 410U.S. 19,21-22 (1973) (finding that agrandjury subpoena requiring handwriting exemplar does not violate the Fourth or Fifth Amendment and that the government need not show reasonableness). 9. See Schrnerber v. California, 384 U.S. 757,765,772 (1966) (explainingthat a warrantless taking of a blood sample to determine whether defendant drove while intoxicated does not implicate the Fifth Amendment and presents no Fourth Amendment problem if there is a "clear indication" of intoxication and police officer had probable cause to detain defendant). 10. See Couch v. United States, 409 U.S. 322,329 (1973) (finding that a taxpayer's papers given to an accountant were not within Fifth Amendment privilege). Heinonline -- 39 Ind. L. Rev. 254 2005-2006 20061 "CAN YOU HEAR ME NOW?" 255 Nonetheless, the Fourth Amendment continues to receive some deference from the Court, which seemed to expand the Amendment's reach in 1967 by beginning to focus on individuals' "reasonable expectation of privacy" as the touchstone for Fourth Amendment protection rather than property concepts such as trespass." It turns out, though, that in many situations there is rather less to the expectation of privacy than meets the eye. The Court's pronouncements about when a subjective expectation of privacy is reasonable sometimes appear to diverge from the public's ideas. In the false-friend cases," the Court has ruled that evidence revealed to the government by a confidant of the defendant is admissible precisely because there is no reasonable expectation of privacy in such situations.I3 In so ruling, the Court raises more (and more troubling) questions than it answers. First, how should the Court determine what constitutes a reasonable expectation of privacy? Second, what are the implications of the rulings in the false-friend cases that there is no reasonable expectation of privacy when voluntarily divulging information to another? Third, why does the Court espouse a concept of consent so at variance with the law's view of consent in other common contexts? This Article discusses those issues, concluding that the Court, perhaps unwittingly, has articulated a rationale that would permit the government unrestricted interception of communications without any Fourth Amendment limitations. Part I offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part I1 focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analyt~calrubric. Part III discusses the unavoidable implication of the Court's approach, and Part IV examines whether there is a principled way out of the dilemma that the Court's reasoning has created. It concludes that there is, but the solution requires recognizing two unstated assumptions that undergird the Court's jurisprudence in this area, assumptions that, when exposed to light, are highly questionable.